(dissenting): I am unable to agree with the ruling of the majority that the petitioners made a free or binding election to file the so-called “final return.” The joint return was filed under the compulsion incident to the refusal of the office of the collector to permit a change to separate returns. Thus the petitioners were deprived of the freedom of choice essential to an election. “* * * if the right [of election] be granted, opportunity for fairly exercising it should not be cut off or disparaged, especially when ignorance, mis-advice or what would ordinarily be recognized as excusable error, has entered into its exercise.” McIntosh v. Wilkinson, 36 Fed. (2d) 807. It would have availed taxpayers nothing to have tendered separate returns. They would not have been accepted. Garland G. Kent, 27 B. T. A. 1055; United States v. Pettigrew, 81 Fed. (2d) 666.
*487In Detroit Gear Machine. Co. v. Helvering, 75 Fed. (2d) 660, the court observed:
* * * where there is a complete reversal of policy on the part of the Treasury Department and, scant opportunity of notice to those affected, it would he doth arbitrary mid unreasonable to deprive the taxpayer of rights given him by the Revenue Acts or to hold him, as in this case, to am election made without knowledge of his rights. In saying this, we do not mean to intimate that the taxpayer is not bound by his misinterpretation or misconstruction of the law, or that he should be relieved because of his failure to know the law, but we are speaking entirely to the matter of an election between two inconsistent rights, either of which may be availed of by the taxpayer under the tax laws. In such a case knowledge, actual or imputed, is essential to constitute an election. [Italics supplied.]
In the present case the office of the collector advised that the filing of the tentative return precluded a change to separate returns. That this was error, even the prevailing opinion concedes. This misadvice by the collector’s office is solely responsible for the present proceedings. Had the collector advised correctly, taxpayers would have filed separate returns and these cases would never have been filed.
Although I readily agree that the Board has no general equitable jurisdiction, I do not agree that, in determining the question here present as to the exercise of an election granted by statute, equitable considerations arising frota, the facts may not be entertained. See McIntosh v. Wilkinson, supra; Detroit Gear Machine Co. v. Helvering, supra. The doctrine of election depends not on technical rules but on principles of equity and justice and actual intention. To be binding an election must be free, advised, and deliberate. Standard Oil Co. v. Hawkins, 74 Fed. (2d) 395. Here the taxpayers made no such election.
I believe the respondent should be reversed.
Arundell agrees with this dissent.